Acting Up Against a New Millennium

Demonstrators protest against Bill C-61 outside the offices of then–Minister of Industry Jim Prentice, July 2008. Photo by k-ideas.

Back when Parliament Hill was in the throes of its last electoral shake-up, Bill C-61, An Act to amend the Copyright Act, was nearly forgotten, buried beneath all the high-stakes drama of a government on the brink. When Governor General Michaëlle Jean dissolved the thirty-ninth parliament at Harper’s request on September 7, 2008, the legislation died, with a promised—or threatened—resurrection should the Conservatives win re-election.
On October 14, 2008, after one of the most abysmal voter turnouts in Canadian history, Stephen Harper and his minority Tories bounced back with a marginally stronger government, twelve seats shy of the coveted majority. Riding the Tory train back to the limelight was a platform of controversial policies and proposals, including the dossier of digital-era copyright amendments previously known as Bill C-61.

At the peak of the bill’s attendant melee was concern over hefty penalties exacted for copyright infraction, especially as it pertains to personal use. For music sharing, offenders under the new legislation would face fines of five hundred dollars per download; if caught uploading copyrighted material to YouTube, or other infringements of Digital Rights Management, individuals could face penalties in the stratospheric twenty-thousand-dollar range, which also applied to peer-to-peer filesharing networks. Of greater concern than the penalties, however, was the disproportionate nature of punishable offenses under the proposed legislation, as well as yawning loopholes in the language of the bill. Say you’re trying to copy a locked CD to your iPod—it’s a maximum fine of five hundred dollars for personal use, right? Except it’s not: you just cracked a protected device, meaning you broke that CD’s digital locks, circumventing DRM provisions protecting copyright holders, meaning it’s twenty grand you owe in penalties—per song.
And don’t even try to play on anyone’s conscience or sympathies in appealing such a slap in the face. You could have done it with the absolute rosiest of intentions—to provide music for a free community event; to give your dying grandmother one last chance to hear Thriller—but if you’re caught, forget about it. The long, wriggly, ‘roid-pumped tentacles of the law under C-61—Canada’s very own Digital Millennium Copyright Act—wouldn’t exactly be forgiving.

At first glance, some of the bill’s most fervid criticism reads like an Alex Jones fan forum, raising the spectre of a democratically desolate Canada crawling with police and surveillance.
“The government has not thought this through,” said Scott Brison, Liberal industry critic, in June, 2008. “It has not thought about how it will enforce these provisions. There’s a fine line between protecting creators and a police state.”
In an uneasy majority of cases, the law would make criminals of virtually anyone with an iPod, or even those backing up a hard drive containing copyrighted material. You start to imagine a Kevlar-clad, TASER-equipped Geek Squad in spite of yourself.
Putting a temporary kibosh on the worst-case theorizing, a lull followed C-61’s death under the 2008 general election. But as the feds teased, the legislation could come back, sneaking through the back door with a friendlier face.
Yesterday, the federal government launched the Copyright Consultations 2009 website, facilitating a “nationwide consultation on copyright modernization” over several weeks. From July 20 to September 13, Tony Clement, Minister of Industry, and James Moore, Minister of Canadian Heritage and Official Languages, are calling on Canadians to “join the discussion and…express their views throughout the consultation period,” using online submissions, an online discussion forum, and a multimedia centre to keep Canadians in the loop. Throughout the entire process, the consultation focuses on five questions:

How do Canada’s copyright laws affect you? How should existing laws be modernized?

Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

What sorts of copyright changes do you believe would best foster competition and investment in Canada?

What kinds of changes would best position Canada as a leader in the global, digital economy?

Additionally, ministers Clement and Moore will be in attendance at two town-hall meetings in Toronto and Montreal this summer, although the government warns that, while people can tune in via web streaming, “there is limited space available for members of the public.”

The Government of Canada launched its Creative Consultations website on July 20.

Michael Geist, Canada research chair in Internet and e-commerce law at the University of Ottawa, has a problem with the “A-list” elitism of that seemingly two-tiered approach. “My view,” he writes, “is that the only list that really matters is the list of people who take the time to make a public submission. That process is open to everyone and this is the ideal opportunity to ensure that Canadians’ voices are heard.”
Online participation in the decision-making represents another critical electoral opportunity, an advantage Canadians need to seize before a revived C-61, perhaps with greater scope and consequence, becomes a legal reality.
“Some groups will undoubtedly use the consultation to push for a return of Bill C-61,” Geist continues. “Indeed, the recording industry has already said that the bill did not go far enough. That means we could see pressure for a Canadian DMCA, a three-strikes and you’re out process, and the extension of the term of copyright to eat into the public domain.”
Pushing back, Geist has announced the pending launch of a new website, addressing the government’s copyright consultation with his responses to its five key questions. “Countering those calls,” Geist says, referring to industry pressure to revive C-61, “will require broad participation.”